Allahabad High Court
Jamidar vs State Of U.P. And Another on 2 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:55601 Reserved on : 13.03.2024. Delivered on : 02.04.2024. Court No. - 77 Case :- CRIMINAL REVISION No. - 1268 of 2023 Revisionist :- Jamidar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Jai Singh,Vijay Bahadur Yadav Counsel for Opposite Party :- G.A.,Shailendra Yadav,Sudhakar Yadav Hon'ble Rajeev Misra,J.
Heard Mr. Jai Singh along with Mr. Vijay Bahadur Yadav, the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1 and Mr. Shailendra Yadav, the learned counsel representing complainant-opposite party 2.
This criminal revision is directed against the judgement and order dated 09.12.2022, passed by Civil Judge (Jr. Div.), New Court IIIrd/Judicial Magistrate, Jaunpur in Complaint Case No.33 of 2018 (Vijay Kant Vs. Jamidar), under Section 138 N.I. Act, police station Machhlishahar, district Jaunpur, whereby the revisionist has been convicted under Section 138 N.I. Act and sentenced to six months simple imprisonment along with fine of Rs.6,00,000/- (six lacs) and in case of default in the payment of fine the revisionist is to undergo six months additional imprisonment as well as judgement and order dated 25.02.2023, passed by Sessions Judge, Jaunpur in Criminal Appeal No.03 of 2023 (Jamidar Vs. State of U.P. and others), whereby aforementioned appeal filed by revisionist against the judgement and order dated 09.12.2022, has been dismissed.
Brief facts shorn of unnecessary details giving rise to the present criminal proceedings may be summarized as thus : revisionist gave a cheque dated 31.10.2017 bearing cheque no.968492 valued at Rs.4,25,000/- (four lacs twenty five thousand) drawn in favour of Kashi Gomti Sanyukta Gramin Bank, Machhlishahar Branch, Jaunpur to opposite party 2. The aforesaid cheque was deposited by opposite party 2 in the concerned bank on 01.11.2017. However, on 03.11.2017, information was received by opposite party 2 that aforementioned cheque deposited by him has not been encashed. Accordingly, opposite party 2 gave a legal notice dated 02.01.2018 to the revisionist asking him to pay the amount payable under the disputed cheque. However, inspite of receipt of notice, no payment was made by the revisionist to opposite party 2. Consequently, opposite party 2 filed a complaint dated 03.02.2018 under Section 138 N.I. Act, which was registered as Complaint Case No.33 of 2018 in the court of Chief Judicial Magistrate II, Jaunpur.
Notice was issued to the revisionist in aforementioned case. Revisionist did not accept his guilt nor he filed any evidence against the aforesaid complaint.As such, the statement of revisionist (accused) was recorded under Section 251 CrPC. The revisionist in his said statement denied the complaint and pleaded his innocence.
Thereafter, the statement of the complainant was recorded as PW-1. The opposite party 2 in support of its case adduced documentary evidence which is also mentioned at page 23 (running page 3 of certified copy of the order dated 09.12.2022).
On the basis of oral and documentary evidence on record the trial court framed following issues/points for determination i.e. (1) whether the disputed cheque was issued by the revisionist in discharge of any legal debt; (2) whether the cheque was presented within limitation before the ban k and the information regarding non encashment of the cheque in dispute is in consonance with the provisions of Section 138 N.I. Act; (3) whether information was given by opposite party 2 to the revisionist within a period of thirty days from the date of information received by him regarding non encashment of the disputed cheque and (4) whether inspite of receipt of information revisionist has paid the amount payable under the disputed cheque within a period of fifteen days.
Subsequently, the statement of the accused i.e. revisionist was recorded under Section 313 CrPC and all the adverse circumstances were put to the accused-revisionist in question-answer form. However, the accused-revisionist in respect of the said questions did not come up with anything new but simply denied the questions put to him.
On the basis of above, the trial court proceeded to decide the aforementioned complaint case. Trial court recorded a finding that since the issue regarding delay in issuance of notice was not raised by the revisionist much before therefore, the same cannot be raised now. The return memo issued by the bank concerned is though without any seal, yet the accused can not be acquitted of the charge on that ground. In negating the said plea court below relied upon the judgement of Delhi High Court in the case of Guneet Bhasin Vs. State of NCT of Delhi and others Cri.M.C. 4100/2022 and Crl.M.A.16919/2002, wherein following has been observed :
"The cheque return memo is a memo informing the payee's banker and the payee about the dishonour of a cheque. When the cheque is dishonoured. The drawee bank immediately issues a cheque return memo to the payee's banker mentioning the reason for non-payment. The purpose of the cheque return memo is to give the information of the holder of the cheque that his cheque on presentation could not be encashed due to the variety of reasons as mentioned in the cheque return memo. As per the section 146 of the N.I. Act, the cheque return memo on presentation presumed the fact of dishonour of the cheque unless and until such fact is disapproved. Neither section 138 nor the section 146 of the N.I. Act has prescribed any particular form of cheque return memo. The section 138 of the N.I. Act does not mandate any particular form of cheque return memo which is nothing but a mere information given by the banker of the due holder of a cheque that the cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank. It does not render the cheque return memo as invalid or illegal. The cheque return memo is not a document which is not required to be covered under section 4 of the bankers book (Evidence) Act, 1891. If there is any infirmity in the cheque return memo, it does not render entire trial under section 138 of the N.I. Act as nullity."
In view of the admission made by the accused-revisionist in his examination-in-chief, the trial court placing reliance upon Section 114 (G) of Indian Evidence Act, 1872 and Section 139 N.I. Act came to the conclusion that the disputed cheque was issued in discharge of a legal debt. On the above findings, the trial court convicted accused-revisionist under Section 138 N.I. Act and accordingly sentenced him to six months simple imprisonment along with fine of Rs.6,00,000/- (six lacs) and in case of default in the payment of fine amount the revisionist is to undergo six months additional imprisonment.
Feeling aggrieved by the above judgement and order dated 09.12.2022, accused-revisionist preferred an appeal before the Sessions Judge, Jaunpur. The same was registered as Criminal Appeal No.03 of 2023 (Jamidar Vs. State of U.P. and another). Though number of grounds were raised in the memo of appeal and also appear to have been pressed before the appellate court but none found favour with the court of appeal. Consequently, the appellate court dismissed the appeal filed by the revisionist by passing an order of affirmance dated 25.02.2023. It is apposite to mention here that though number of case laws were cited on behalf of the revisionist before the appellate court but the same were distinguished by the appellate court.
Thus, feeling aggrieved by the aforesaid judgements and orders dated 09.12.2022 and 25.02.2023 revisionist has now come up before this Court by means of present criminal revision.
During the pendency of present criminal revision, the parties amicably settled their disputes outside the court. As per the terms of compromise, the matter was settled at Rs.5,00,000/- (five lacs). Accordingly, a joint supplementary affidavit has been filed before this Court duly sworn by the revisionist as well as the complainant-opposite party 2. Paragraphs 4 and 5 of the joint supplementary affidavit are worth noticing and are accordingly reproduced herein-under :
"4. That during the pendency of the criminal revision before this Hon'ble Court, the revisionist as well as opposite party no.2 who is complainant in the present case entered into compromise and the revisionist paid rupees 5 Lac to opposite party no.2 through Cheque No.062762 dated 26.05.2023 issued by the revisionist to the opposite party no.2. True copy of the Cheque along with depositing receipt are being filed herewith and marked as Annexure no.SA-1 to this affidavit.
5. That in respect of same compromise the revisionist as well as opposite party no.2 prepared a Notary Affidavit in which it has been clearly mentioned that the revisionist on 26.05.2023 paid Rs.5 Lac through RTGS in favour of opposite party no.2 and no any other dues are payable by the revisionist and the opposite party no.2 having no any other grievances against the revisionist and they are not interest to contest the case in future and both party made the signature on the said notary affidavit. A true copy of the Notary Affidavit dated 05.06.2023 is being filed herewith and marked as Annexure no.SA-2 to this affidavit."
On the basis of above, it is thus urged by the learned counsel for revisionist that since the parties have amicably settled the dispute outside the court which has also been acted upon therefore, conviction and sentence awarded by the court below against revisionist be set aside.
Per contra, the learned A.G.A. has opposed the submissions urged by the learned counsel for revisionist. He submits that since revisionist is a convicted accused therefore, the compromise if any entered into by the parties after conviction has been awarded by the trial court and affirmed by the appellate court is of no relevance. The present criminal revision is concluded by findings of fact and therefore liable to be dismissed.
Learned counsel representing opposite party 2 has however supported the learned counsel for accused-revisionist. He submits that the dispute under Section 138 N.I. Act is a purely private dispute an as per the terms of Section 138 N.I. Act the matter can be compounded at any stage of the proceeding. Since the complainant-opposite party 2 and the revisionist have amicably settled the dispute by means of a compromise which has also been acted upon therefore, opposite party 2 does not wish to press the prosecution of the revisionist any further.
This Court is not unmindful of the following judgements of Apex Court:
i. B.S. Joshi and others Vs. State of Haryana and another (2003) 4 SCC 675 ii. Madan Mohan Abbot Vs. State of Punjab, (2008) 4 SCC 582 iii. Nikhil Merchant Vs. Central Bureau of Investigation[2008)9 SCC 677] iv. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1 v. Shiji @ Pappu and Others VS. Radhika and Another, (2011) 10 SCC 705 vi. Gian Singh Vs. State of Punjab (2012) 10 SCC 303 vii. K. Srinivas Rao Vs. D.A Deepa, (2013) 5 SCC 226 viii. Dimpey Gujral and others Vs. Union Territory through Administrator, U.T. Chandigarh and others, (2013) 11 SCC 497 ix. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466 x. Yogendra Yadav and Ors. Vs. State of Jharkhand and another (2014) 9 SCC 653 xi. Shlok Bhardwaj Vs. Runika Bhardwaj, (2015) 2 SCC 721 xii. C.B.I. Vs. Maninder Singh (2016) 1 SCC 389 xiii. C.B.I. Vs. Sadhu Ram Singla and Others, (2017) 5 SCC 350 xiv. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and another, (2017) 9 SCC 641 xv. Anita Maria Dias and Ors. Vs. State of Maharashtra and Others, (2018) 3 SCC 290 xvi. Social Action Forum For Manav Adhikar and Another Vs. Union of India and others, (2018) 10 SCC, 443 (Constitution Bench) xvii. State of M.P. VS. Dhruv Gurjar and Another, (2019) 5 SCC 570 xviii. State of M.P. V/s Laxmi Narayan & Ors., (2019) 5 SCC 688 xix. Rampal Vs. State of Haryana, AIR online 2019 SC 1716 xx. Arun Singh and Others VS. State of U.P. and Another (2020) 3 SCC 736 xxi. Ramgopal and Another Vs. The State of M.P., 2021 SCC OnLine SC 834 xxii. Daxaben Vs. State of Gujarat, 2022 SCC Online 936.
xxiii. State of Kerala VS. Hafsal Rahman N.R., Special Leave Petition (Criminal) Diary Nos. 24362 of 2021 wherein the Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. However, Apex Court in State of M.P. Vs. Laxmi Narayan (Supra) held that no compromise can be made in respect of offences against society as they are not private in nature. Similarly in Ram Pal Vs. State of Haryana (Supra) it has been held that no compromise can be made in cases relating to rape and sexual assault. Recently, the Apex Court in Daxaben (supra) has held that no compromise can be made in matter under Section 306 IPC. In state of Kerala Vs. Hafsal Rahman (Supra), Court has held that no compromise can be entertained in matters under the POCSO Acts. Reference may also be made to the decision given by this Court in Shaifullah and others Vs. State of U.P. And another [2013 (83) ACC 278] in which the law expounded by the Apex court in some of the aforesaid cases has been explained in detail.
Recently Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (Supra) has laid down the following guidelines with regard to quashing of criminal proceedings as well compromise in criminal proceedings in paragraphs 16 to 16.10 of the report, which read as under:
"16. The broad principles which emerge from the precedents on the subject, may be summarized in the following propositions 16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9 above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
Recently in Ramgopal and Another (supra), Court has again reiterated the guidelines regarding quashing of criminal proceedings in view of compromise. Following has been observed in paragraphs 18-19 of the judgement:-
"18. It is now a well crystalized axiom that plenary jurisdiction of this Court to impart complete justice under Article 142 cannot ipso facto be limited or restricted by ordinary statutory provisions. It is also noteworthy that even in the absence of an express provision akin to Section 482 Cr.P.C. conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable under Article 142 of the Constitution embraces this Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching objective of sentencing in the criminal justice system, which is grounded on the sub-lime philosophy of maintenance of peace of the collective and that the rationale of placing an individual behind bars is aimed at his reformation.
19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercise carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations."
The issue as to whether, compromise can be entered into by the parties even after a judgment of conviction has been passed is also no longer res-integra and stands settled by the judgment of the Supreme Court in Ramgopal and Another (Supra).
Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1 and the learned counsel representing complainant-opposite party 2, this Court finds that though accused-revisionist has been convicted and sentenced by the trial court vide judgement and order dated 09.12.2022 and the same was also affirmed by the appellate court vide judgement and order dated 25.02.2023 but, however, during the pendency of this criminal revision which has been preferred against the aforementioned judgements and orders the parties have amicably settled their dispute outside the court. The compromise so entered into between the parties has also been acted upon as is established from the recital contained in paragraphs 4 and 5 of the joint supplementary affidavit referred to above. Admittedly, the dispute between the parties is a purely private dispute and not a crime against the society. As per the terms of settlement, the entire amount payable to opposite party 2 now stands satisfied. Consequently, the civil liability standing against the revisionist having been satisfied, no useful purpose shall be served in continuing the criminal prosecution of the revisionist.
In view of above and also the law laid down by the Apex Court as noted herein above, the present criminal revision succeeds and is liable to be allowed.
It is, accordingly, allowed.
The judgement and order dated 09.12.2022, passed by Civil Judge (Jr. Div.), New Court IIIrd/Judicial Magistrate, Jaunpur in Complaint Case No.33 of 2018 (Vijay Kant Vs. Jamidar), under Section 138 N.I. Act, police station Machhlishahar, district Jaunpur and the judgement and order dated 25.02.2023, passed by Sessions Judge, Jaunpur in Criminal Appeal No.03 of 2023 (Jamidar Vs. State of U.P. and others) are hereby set aside.
In the facts and circumstances of the case, there shall be no order as to costs.
Order Date :- 2.4.2024.
Rks.